Dennis Wilkerson v. Atascosa Wildlife Supply ( 2009 )

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OPINION
No. 04-08-00468-CV
Dennis WILKERSON,
Appellant
v.
ATASCOSA WILDLIFE SUPPLY,
Appellee
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 04-01-0065-CVA
Honorable Stella H. Saxon, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: November 18, 2009
AFFIRMED
Dennis Wilkerson filed a limited appeal on the sole issue of whether the trial court erred in
including fees for an attorney’s travel time in the attorney’s fees award. We hold the trial court did
not err and affirm the judgment.
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BACKGROUND
This dispute over attorney’s fees arises from a suit by Atascosa Wildlife Supply against
Wilkerson for the failure to pay a debt for corn feed and damage to a rented trailer. Atascosa Wildlife
Supply sought attorney’s fees pursuant to chapter 38 of the Texas Civil Practice and Remedies Code.
The case was tried to a jury on all issues except attorney’s fees, which the parties agreed to have
determined by the trial court. The judgment awarded $6,275.00 in damages and $20,312.50 in
attorney’s fees in favor of Atascosa Wildlife Supply. Wilkerson contends the trial court erred in
including $5,500.00 for travel time in the attorney’s fee award, arguing there is no legal authority and
no evidence to support the award.
DISCUSSION
Many jurisdictions permit attorneys to recover fees for travel time, although most have not
permitted a full recovery.1 The parties have not cited nor have we discovered any Texas case that
precludes the recovery of fees for an attorney’s travel time. Atascosa Wildlife Supply cited one Texas
case that allowed the inclusion of full travel time in the attorney’s fees award. See Prestwood v. Settle,
No. 03-07-00111-CV, 2008 WL 537159, at *9 (Tex. App.—Austin February 28, 2008, pet. denied).
The question of whether attorney’s fees for travel time are recoverable was not directly raised in
1
… See e.g., Barfield v. New York City Health & Hosps. Corp., 537 F.3d 132, 140 (2d Cir. 2008)(affirming
compensation of travel time at half-rate in FSLA case, “in accordance with established [Second Circuit] custom”); In
re Babcock & Wilcox Co., 526 F.3d 824, 828 (5th Cir. 2008)(evaluating Fifth Circuit precedent from various types of
cases and concluding as a general rule that “it is not an abuse of discretion to discount non-working (and even working)
travel time”); Interfaith Cmty. Org. v. Honeywell Int'l Inc., 426 F.3d 694, 711 (3d Cir. 2005)(travel time is compensated
as part of attorney’s fees and costs based on the prevailing rate in the forum of the litigation.); Watkins v. Fordice, 7 F.3d
453, 459 (5th Cir. 1993)(affirming district court’s decision to discount hourly rate billed for travel time, in a Voting
Rights Act case); Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir. 1984)(reasonable attorney’s fees presumptively
include reasonable travel time billed at same hourly rate as normal working time); Colbert v. Furumoto Realty, Inc., 144
F. Supp. 2d 251, 261 (S.D.N.Y. 2001)(explaining that travel time may be fully reimbursed if the moving party submitted
an affidavit stating that work was accomplished during that time); Jennette v. City of New York, 800 F. Supp. 1165, 1170
(S.D.N.Y. 1992)(reducing attorneys’s fees by 50% for travel time because time spent in transit is not as productive as
time at the office or in court.”).
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Prestwood, rather, the issue was only whether the total fee award was reasonable. The attorney testified
his $1,000 fee was reasonable and necessary in the case based on work he actually performed,
including the time he spent commuting to Travis County, which he used to practice his argument for
the scheduled hearing. Id. The court concluded the trial court did not commit error in awarding
attorney’s fees. Id.
The factors a fact finder should consider when determining the reasonableness of a fee include:
the time, labor, and skill required to properly perform the legal service; the novelty and difficulty of
the questions involved; the customary fees charged in the local legal community for similar legal
services; the amount involved and the results obtained; the nature and length of the professional
relationship with the client; and the experience, reputation and ability of the lawyer performing the
services. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). There
does not need to be evidence on all these factors in order to support an attorney’s fees award. See
Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 897-98 (Tex. App.—
Dallas 2003, no pet.). The trial court can also look at the entire record and the common knowledge of
the participants as lawyers and judges, and the relative success of the parties when determining
reasonable and necessary attorney’s fees. Id. at 897.
The amount of an attorney’s fees award rests in the sound discretion of the trial court, and its
judgment will not be reversed on appeal absent a clear abuse of discretion. See AMX Enters., L.L.P.
v. Master Realty Corp., 283 S.W.3d 506, 516 (Tex. App.—Fort Worth 2009, no pet.); Bair Chase
Prop. Co., LLC v. S & K Dev. Co., 260 S.W.3d 133, 138 (Tex. App.—Austin 2008, pet. denied);
Alford v. Johnston, 224 S.W.3d 291, 298 (Tex. App.—El Paso 2005, pet. denied). Abuse of discretion
occurs when the trial court acted without reference to any guiding rules and principles. Cire v.
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Cummings, 134 S.W.3d 835, 839 (Tex. 2004). A trial court’s award of attorney’s fees can be set aside
only if it was arbitrary or unreasonable. Id.
The trial court took judicial notice of the court’s file and the affidavit of Gilbert Adams,
Atascosa Wildlife Supply’s attorney. Adams’s affidavit detailed the time expended and the
corresponding activities conducted on the underlying lawsuit. Adams states in his affidavit that his fees
for travel time were reasonable and necessary considering the distance traveled and were required in
connection with the prosecution of this lawsuit.
Adams also testified before the trial court. Adams testified he represented Atascosa Wildlife
Supply since the inception of its claim against Wilkerson in 2003 and that his employment for
Atascosa Wildlife Supply in the underlying litigation precluded him from other employment. Adams
also testified the customary fee for commercial litigation is $300 an hour for cases such as this and
he charged $250 an hour. Adams sought compensation for eighty-one and a quarter hours incurred in
prosecuting this case to judgment. He testified that although he only sought fees for twenty-two hours
of travel time, he actually spent forty hours traveling on case related matters. Adams itemized four
hours for the time he was traveling as a passenger and actively working on the case. Adams testified
that during thirty-six hours, he was not actively working on the case, he was only driving. Accordingly,
he sought fees for only one-half of those hours.
CONCLUSION
The trial court did not abuse its discretion in awarding attorney’s fees for travel time in light
of the evidence and the factors considered in making such an award. The travel time was reduced for
the time when Adams was not actively working on case related matters. There is nothing in the record
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to indicate the trial court’s decision to include Adam’s travel time in the attorney’s fees award was
unreasonable or arbitrary. The judgment is affirmed.
Steven C. Hilbig, Justice
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